What Goes Around Comes Around: How UNCLOS Ratification Will Herald Europe's Precautionary Principle as U.S. Law

The Kogan Law Group, P.C.; Institute for Trade, Standards and Sustainable Development (ITSSD)

Date Written: March 10, 2009

Abstract

The U.S. must increase and intensify its respect for international law and its consequences. This requires that it completely understand the legal obligations it assumes, along with their downstream economic, legal and national security implications, upon ratifying or acceding to any international treaty.

The U.S. Constitution provides the President with the power to enter into treaties with foreign nations, but holds the U.S. Senate ultimately responsible for reviewing and deciding whether the U.S. shall ratify or accede to such treaties before presenting them to the President for signature and deposit at the treaty's secretariat. Given the significant responsibility borne by the U.S. Senate Foreign Relations Committee (SFRC) in competently performing its treaty ratification and accession function, prudence and the U.S. Constitution dictate that it undertake an in-depth due diligence review of a treaty's full provisions, its relationship to other relevant treaties to which the U.S. is either a party or nonparty, and its prospective impact on related U.S. federal laws and regulations as well as the U.S. economy, before it makes a recommendation. Therefore, it is reasonable for Americans to expect that the SFRC will secure the assistance of other congressional committees possessing oversight jurisdiction and specialized subject matter knowledge to ensure that an international treaty is properly vetted and publicly reported.

Like its predecessors, the Obama Administration, in the interest of promoting U.S. diplomacy, has expressed its intention to accede to the UN Law of the Sea Convention (UNCLOS) and to submit it for SFRC review sometime during 2009. The UNCLOS contains more than 45 environmental articles, regulations, protocols, annexes and appendices related to numerous other United Nations multilateral environmental treaties. By virtue thereof, the UNCLOS arguably has incorporated evolving international environmental norms employed or found incorporated within said treaties, such as Europe's Precautionary Principle, that also may result in or otherwise trigger future economically significant administrative and/or legislative changes to U.S. federal environmental rules. The UNCLOS, furthermore, arguably contains the most extensive compulsory and binding dispute settlement mechanism of any multilateral treaty, save for the heavily utilized dispute settlement mechanisms of the World Trade Organization, into which the U.S. could be involuntarily drawn, and which could conceivably issue rulings adverse to U.S. national security and economic interests.

Notwithstanding the many thousands of pages of Congressional transcript generated during the review of various other aspects of the UNCLOS to date, only a cursory review of the treaty's vast environmental component has been performed. Consequently, neither the SFRC nor other specialized Congressional committees possessing oversight jurisdiction have examined the environmental portion of the UNCLOS in depth, such that, they have considered how elements of it could be, or have actually been, used by foreign governments and civil society groups against US national economic objectives and to thwart U.S. military interests.

The purpose of this article is to prompt the United States Congress to hold open, transparent and substantive public hearings that discuss, evaluate and explain to the American people the significant environmental regulatory and judicial enforcement aspects, and putative penalties of the UNCLOS before the treaty is submitted to the full Senate for a vote of accession. This article hopefully accomplishes this objective by identifying and examining how U.S. UNCLOS accession could be used by both external and internal constituencies of the United States to facilitate the adoption as U.S. law of Europe's 'standard-of-proof diminishing', 'burden of proof-reversing', 'guilty-until-proven-innocent', 'I fear, therefore I shall ban', 'hazard-not-risk-based', Roman civil law-not-common law, extra-WTO Precautionary Principle (PP) (hereinafter referred to as "Europe's Precautionary Principle"). "Generally speaking, the precautionary principle says that in dubio pro natura. If in doubt, decide in favour of the environment." It is well known that House Speaker Nancy Pelosi harkens from the first major U.S. city that adopted Europe's Precautionary Principle as U.S. law - San Francisco. It is also well known that Senate Foreign Relations Committee Chair John Kerry is a progressive environmental author who also favors U.S. adoption of Europe's Precautionary Principle. Furthermore, it is well known that House Energy and Commerce Committee Chairman Henry Waxman and Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies Chairwoman Diane Feinstein, as well, favor adoption of Europe's Precautionary Principle as U.S. law.

Pathways for external constituencies would consist, in part, of UNCLOS (and related Protocol) Secretariat-level treaty amendments, regulations and resolutions incorporated within federal law by U.S. governmental agencies charged with implementing the environmental and natural resource obligations that our nation knowingly assumed upon acceding to UNCLOS Parts V, VII and XII. Such pathways would also include compulsory and binding international tribunal decisions resulting from legal actions initiated by foreign nations. Foreign nations will likely challenge U.S. interpretation and implementation of its UNCLOS environmental obligations as being inconsistent with Europe's Precautionary Principle. And, they will insist that U.S. federal and state courts recognize and enforce those judgments, consistent with our nation's accepted obligations under UNCLOS Part XV and Annexes VI-VIII.

Pathways for internal constituencies would consist of proposed Congressional amendments to current federal environmental legislation, as well as, federal agency-initiated reinterpretations or amendments of current administrative regulations. In addition, executive branch office directives may be used to secure administrative amendments to or reinterpretations of current environmental regulations, consistent with Europe's Precautionary Principle. Another such pathway would include the use of Executive Office directives or Congressional action to ensure U.S. federal court recognition and enforcement of adverse foreign tribunal judgments instructing the U.S. government to fulfill its UNCLOS environmental law obligations, again consistent with Europe's Precautionary Principle.

Part I of this article provides an overview of the issues concerning the relationship between the UNCLOS, Europe's Precautionary Principle and international environmental law. Part II discusses the external pathways. Part III discusses the internal pathways. Part IV sets forth the article's conclusion and surmises why the U.S. Congress has thus far failed to hold public and transparent substantive hearings to examine the environmental dimensions of the UNCLOS.

Kogan, Lawrence A., What Goes Around Comes Around: How UNCLOS Ratification Will Herald Europe's Precautionary Principle as U.S. Law (March 10, 2009). Santa Clara Journal of International Law, Vol. 7, May 2009. Available at SSRN: https://ssrn.com/abstract=1356837